[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Rules and Regulations]
[Pages 15621-15624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7078]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA 2010-0043]
RIN 2127-AK38
Federal Motor Vehicle Safety Standards; Theft Protection and
Rollaway Prevention
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: Pursuant to a statutory mandate in the Cameron Gulbransen Kids
Transportation Safety Act of 2007, NHTSA is placing a requirement in
Federal Motor Vehicle Safety Standard No. 114 that certain motor
vehicles with an automatic transmission that includes a ``park''
position manufactured for sale on or after September 1, 2010 be
equipped with a brake transmission shift interlock (BTSI). This
interlock must necessitate that the service brake pedal be depressed
before the transmission can be shifted out of ``park,'' and must
function in any starting system key position. The BTSI requirement
adopted by this final rule is identical in substance to the
Congressional requirement.
DATES: This final rule is effective April 29, 2010. Petitions for
reconsideration: If you wish to petition for reconsideration of this
rule, your petition must be received by May 14, 2010.
ADDRESSES: If you submit a petition for reconsideration of this rule,
you should refer in your petition to the docket number of this document
and submit your petition to: Administrator, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue, SE., West Building,
Washington, DC 20590.
The petition will be placed in the public docket. Anyone is able to
search the electronic form of all documents received into any of our
dockets by the name of the individual submitting the document (or
signing the document, if submitted on behalf of an association,
business, labor union, etc.). You may review DOT's complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (Volume
65, Number 70; Pages 19477-78).
FOR FURTHER INFORMATION CONTACT: For technical issues, you may contact
Gayle Dalrymple, NVS-123, Office of Rulemaking, by telephone at (202)
366-0098, by fax at (202) 366-7002, or by email to
[email protected]. For legal issues, you may contact David
Jasinski, Office of the Chief Counsel, NCC-112, by telephone at (202)
366-2992, by fax at (202) 366-3820, or by email to
[email protected]. You may send mail to both of these officials at
National Highway Traffic Safety Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Mandate and Background
II. Summary of the NPRM
III. Comments and Analysis
IV. Effective Date
V. Rulemaking Analysis and Notices
I. Statutory Mandate and Background
On February 28, 2008, the ``Cameron Gulbransen Kids Transportation
Safety Act of 2007'' (the K.T. Safety Act, or ``Act'') was signed into
law.\1\ This Act relates to several aspects of motor vehicle safety
involving incidents where a person, frequently a child, could be hurt
in non-traffic situations. The K.T. Safety Act addresses safety
concerns related to, among other matters, power windows, rearward
visibility, and vehicles rolling away. The latter refers to incidents
that typically involve an unattended child managing to shift the
vehicle's transmission out of the ``park'' position when the child is
left in a vehicle with the vehicle's key. With a BTSI system, the brake
pedal must be depressed before the transmission can be shifted out of
park. To reduce the occurrence of roll away incidents, the Act requires
that each vehicle that is less than 10,000 pounds ``gross vehicular
weight,'' excluding motorcycles and trailers, manufactured for sale
after September 1, 2010, that includes an automatic transmission with a
``park'' position, be equipped with a system that requires the service
brake to be depressed before the transmission can be shifted out of
``park'' (i.e., a BTSI system). The Act further requires the system to
function in any
[[Page 15622]]
starting system key position in which the transmission can be shifted
out of ``park.'' The Act also requires that a violation of this
requirement be treated as a violation of a Federal motor vehicle safety
standard.
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\1\ Pub. L. 110-189, 112 Stat. 639 (Feb. 28, 2008).
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In August 2006, prior to enactment of the K.T. Safety Act, the
Alliance of Automobile Manufacturers and the Association of
International Automobile Manufacturers (AIAM) developed a voluntary
agreement requiring full implementation of a Brake Transmission Shift
Interlock not later than September 1, 2010.\2\ This agreement, signed
by many major automakers, also defined some of the key terms and
required that automakers disclose the percentage of their current
production vehicles equipped with BTSI systems, as well as when they
reached full compliance. The language of that agreement was
substantially the same as the BTSI requirement in the K.T. Safety Act.
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\2\ The announcement and text of this agreement are available on
the NHTSA website, http://www.nhtsa.dot.gov.
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II. Summary of the NPRM
In a notice of proposed rulemaking (NPRM) published on August 25,
2009,\3\ NHTSA proposed to incorporate the language of the K.T. Safety
Act into the text of Federal Motor Vehicle Safety Standard (FMVSS) No.
114, Theft protection and rollaway prevention. Because Congress
mandated all vehicles be equipped with BTSI, no action was required by
NHTSA for the requirement to take effect. However, we believed it would
be helpful to manufacturers and other interested parties to group the
BTSI requirement with other rollaway provisions of FMVSS No. 114. That
is, the rollaway provisions of the FMVSSs would be easier to ascertain
and understand if the provisions were codified together.
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\3\ 74 FR 42837 (Docket No. NHTSA-2009-0049).
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In the NPRM, we proposed locating the BTSI requirement in paragraph
S5 of FMVSS No. 114. Additionally, we proposed a minor modification of
paragraph S3 of the standard, Applicability, to account for the minor
differences between the applicability of the BTSI requirement and the
applicability of FMVSS No. 114 generally.
In addition to inserting the statutory requirement into the
standard, NHTSA offered for public comment four interpretations of the
statutory language:
The last sentence of section 2(d)(1) of the Act states:
``This system shall function in any starting system key position in
which the transmission can be shifted out of `park'.'' We stated that
this sentence means that, no matter the starting system position the
key is in (e.g., ``lock,'' ``accessory,'' or ``start''), the
transmission must only shift out of ``park'' when the service brake is
depressed.
We stated that the BTSI requirement applies to vehicles
with all keys, i.e., a physical device or an electronic code, such as
those requiring the operator to enter a code or push a button to start
the vehicle.
We understood the term ``gross vehicular weight'' in
section 2(e)(2) to mean ``gross vehicle weight rating (GVWR).''
The phrase ``manufactured for sale after September 1,
2010'' in section 2(d)(1) of the Act means ``manufactured on or after
September 1, 2010.''
III. Comments and Analysis
NHTSA received two comments in response to the NPRM. One comment,
from the Alliance of Automobile Manufacturers, supported NHTSA's
proposal to include the BTSI requirement in FMVSS No. 114. A second
comment, from AIAM, also supported NHTSA's proposal, but requested that
the agency include a gear selection control override option that would
allow the vehicle to be shifted out of ``park'' without depressing the
service brake under certain limited conditions. AIAM stated its belief
that an override feature would not degrade safety, would promote
flexibility, and prevent consumer backlash. AIAM stated its belief that
Congress did not intend to require a rigid, inflexible interpretation
of the law, while maintaining the safety purpose of the device.
We are not adopting AIAM's suggested override feature in this final
rule for the following reasons. First, it is not clear that an override
is permissible within the language of the K.T. Safety Act. AIAM noted
that the Act neither expressly prohibits nor requires an override
system and argued that NHTSA could implement an override. However, we
find no indication either in the text of the K.T. Safety Act or its
associated legislative history that Congress envisioned any exception
to the plain language of the Act. Furthermore, many Congressional
actions, including other portions of the K.T. Safety Act, require NHTSA
to undertake rulemaking in various areas of concern and permit a degree
of agency discretion in their implementation. In the case of BTSI,
Congress made this requirement self-effectuating and did not direct
that rulemaking be done, indicating that the agency is afforded less
leeway in the implementation of the requirement.
Second, NHTSA is concerned that implementing an override would be
outside the scope of this rulemaking action. The August 25, 2009 NPRM
proposed only the incorporation of the statutory language into the
standard for the convenience of manufacturers and other readers of the
safety standards. The NPRM did not analyze or propose possible
mechanisms to adjust the statutory requirement, such as permitting an
override in a limited set of circumstances. Therefore, we believe it
would be outside the scope of this rulemaking to include such a change
to the BTSI requirement in this final rule.
Third, while AIAM suggested that the lack of an override could
create a consumer backlash, they provided no information why this would
necessarily be so. In a supplement to its comments, AIAM stated that,
in some vehicles, if the battery is dead or at a low state of charge,
the shift selector control may not be moved from ``park'' even with the
service brake pedal depressed. AIAM provided no data on the number of
vehicles or model lines produced that operate this way, nor did AIAM
explain why a decision was made to operate these vehicles in this
fashion. In short, we are not convinced that an override feature is
necessary. We note that no commenter addressed the four interpretations
of the BTSI provision of the K.T. Safety Act. Accordingly, we adopt
those interpretations without further discussion.
For the reasons discussed above and in the NPRM, and having
considered all of the comments received, NHTSA will adopt without
change the amendments proposed in the NPRM.
IV. Effective Date
Section 30111(d) of title 49, United States Code, provides that a
Federal motor vehicle safety standard may not become effective before
the 180th day after the standard is prescribed or later than one year
after it is prescribed except when a different effective date is, for
good cause shown, in the public interest. In this instance, the K.T.
Safety Act prescribes the effective date of the BTSI requirement. The
inclusion of this mandate in the FMVSSs was solely for the convenience
of the reader. Therefore, good cause exists for this amendment to FMVSS
No. 114 to become effective before the 180th day after the publication
of this rule.
[[Page 15623]]
V. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impacts of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This action was not reviewed by the Office of
Management and Budget under E.O. 12866. The agency has considered the
impact of this action under the Department of Transportation's
regulatory policies and procedures (44 FR 11034; February 26, 1979),
and has determined that it is not ``significant'' under them. This
rulemaking document was not reviewed under E.O. 12866.
Today's notice inserts the Congressional mandate into the Federal
motor vehicle safety standards for the convenience of users. It does
not impose any additional regulatory requirements. We also note that
most vehicles are already equipped with a BTSI system. The agency
concludes that the impacts of the changes are so minimal that
preparation of a full regulatory evaluation is not required.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
The Small Business Administration's regulations at 13 CFR Part 121
define a small business, in part, as a business entity ``which operates
primarily within the United States.'' (13 CFR 121.105(a)). No
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
NHTSA has considered the effects of this final rule under the
Regulatory Flexibility Act. I certify that this final rule will not
have a significant economic impact on a substantial number of small
entities. This rule merely includes in the Federal motor vehicle safety
standards a requirement passed by Congress in the K.T. Safety Act. No
substantive changes to the Act are being made in this final rule. Small
organizations and small government units would not be significantly
affected since this action will not affect the price of new motor
vehicles. For the vast majority of motor vehicle manufacturers, the
BTSI requirement merely codifies a voluntary pledge made by
manufacturers to install BTSI systems on all vehicles by September 1,
2010. For any vehicle manufacturers that do not already install a BTSI
system in their vehicles, NHTSA does not believe that installing such a
system will result in a significant economic impact on those entities.
This is because the addition of BTSI requires only a relatively simple
mechanical and/or electrical modification.
Executive Order 13132 (Federalism)
NHTSA has examined today's final rule pursuant to Executive Order
13132 (64 FR 43255, August 10, 1999) and concluded that no additional
consultation with States, local governments, or their representatives
is mandated beyond the rulemaking process. The agency has concluded
that the rule does not have sufficient federalism implications to
warrant either consultation with State and local officials or
preparation of a federalism summary impact statement. The rule does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and the responsibilities among the various levels of
government.''
Further, no consultation is needed to discuss the issue of
preemption in connection with today's final rule. The issue of
preemption can arise in connection with NHTSA rules in two ways.
First, the National Traffic and Motor Vehicle Safety Act contains
an express preemption provision: ``When a motor vehicle safety standard
is in effect under this chapter, a State or a political subdivision of
a State may prescribe or continue in effect a standard applicable to
the same aspect of performance of a motor vehicle or motor vehicle
equipment only if the standard is identical to the standard prescribed
under this chapter.'' 49 U.S.C. 30103(b)(1). It is this statutory
command that unavoidably preempts State legislative and administrative
law, not today's rulemaking, so consultation is unnecessary.
Second, the Supreme Court has recognized the possibility of implied
preemption: in some instances, State requirements imposed on motor
vehicle manufacturers, including sanctions imposed by State tort law,
can stand as an obstacle to the accomplishment and execution of some of
the NHTSA safety standards. When such a conflict is discerned, the
Supremacy Clause of the Constitution makes the State requirements
unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861
(2000).
NHTSA has considered the nature (e.g., the language and structure
of the regulatory text) and purpose of today's final rule and does not
foresee any potential State requirements that might conflict with it.
Without any conflict, there could not be any implied preemption of
state law, including state tort law.
Executive Order 12988 (Civil Justice Reform)
With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996) requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of
preemption is discussed above. NHTSA notes further that there is no
requirement that individuals submit a petition for reconsideration or
pursue other administrative proceeding before they may file suit in
court.
Protection of Children From Environmental Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental,
health, or safety risk that the agency has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the agency must evaluate the environmental health or
safety effects of the planned rule on children,
[[Page 15624]]
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the agency.
Although this final rule is part of a rulemaking expected to have a
positive safety impact on children, it is not an economically
significant regulatory action under Executive Order 12866.
Consequently, no further analysis is required under Executive Order
13045.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), a person is not
required to respond to a collection of information by a Federal agency
unless the collection displays a valid OMB control number. There is no
information collection requirement associated with this final rule.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the
agency to evaluate and use voluntary consensus standards in its
regulatory activities unless doing so would be inconsistent with
applicable law or is otherwise impractical. Voluntary consensus
standards are technical standards (e.g., materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies, such as
the Society of Automotive Engineers. The NTTAA directs us to provide
Congress (through OMB) with explanations when we decide not to use
available and applicable voluntary consensus standards. There are no
voluntary consensus standards developed by voluntary consensus
standards bodies pertaining to the BTSI requirement. However, we note
that currently, most automobile manufacturers incorporate a brake shift
transmission interlock in their vehicles. In 2006, most large vehicle
manufacturers agreed to a voluntary commitment to include a BTSI system
in their vehicles by September 1, 2010. Finally, due to the BTSI
provision in the K.T. Safety Act, all manufacturers will be required by
statute to include it in their vehicles by September 1, 2010. This
final rule incorporates the statutory requirement into FMVSS No. 114
and does not include any additional requirements for manufacturers.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires federal agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million annually (adjusted for inflation with base year of
1995). Before promulgating a NHTSA rule for which a written statement
is needed, section 205 of the UMRA generally requires the agency to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows the agency to adopt an alternative
other than the least costly, most cost-effective, or least burdensome
alternative if the agency publishes with the final rule an explanation
of why that alternative was not adopted.
This final rule will not result in any expenditure by State, local,
or tribal governments or the private sector. Thus, this final rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
National Environmental Policy Act
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of this action will not have any significant impact on
the quality of the human environment.
Regulatory Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.regulations.gov.
List of Subjects in 49 CFR Part 571
Motor vehicle safety, Reporting and recordkeeping requirements,
Tires.
0
In consideration of the foregoing, NHTSA hereby amends 49 CFR part 571
as follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
1. The authority citation for part 571 of Title 49 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
0
2. Section 571.114 is amended by revising paragraphs S3 and S5 and
adding paragraph S5.3 to read as follows:
Sec. 571.114 Standard No. 114; Theft protection and rollaway
prevention.
* * * * *
S3. Application. This standard applies to all passenger cars, and
to trucks and multipurpose passenger vehicles with a GVWR of 4,536
kilograms (10,000 pounds) or less. However, it does not apply to walk-
in van-type vehicles. Additionally, paragraph S5.3 of this standard
applies to all motor vehicles, except trailers and motorcycles, with a
GVWR of 4,536 kilograms (10,000 pounds) or less.
* * * * *
S5 Requirements. Each vehicle subject to this standard must meet
the requirements of S5.1, S5.2, and S5.3. Open-body type vehicles are
not required to comply with S5.1.3.
* * * * *
S5.3 Brake transmission shift interlock. Each motor vehicle
manufactured on or after September 1, 2010 with a GVWR of 4,536
kilograms (10,000 pounds) or less with an automatic transmission that
includes a ``park'' position shall be equipped with a system that
requires the service brake to be depressed before the transmission can
be shifted out of ``park.'' This system shall function in any starting
system key position in which the transmission can be shifted out of
``park.'' This section does not apply to trailers or motorcycles.
* * * * *
Issued on: March 25, 2010.
David L. Strickland,
Administrator.
[FR Doc. 2010-7078 Filed 3-29-10; 8:45 am]
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